AgenPro LICENSE AGREEMENT ========================= THIS LICENSE AGREEMENT (this "Agreement") is made effective as of the date the product is installed by and between (i) Frank Fock, the author of AgenPro ("LICENSOR") and the party executing this Agreement as Licensee ("LICENSEE"). 1. DEFINITIONS. 1.1 The term "Software Product" means Frank Fock's AgenPro computer software (including Executable Code and Source Code as defined in Section 1.3 and 1.4) and documentation thereof, as specified in Exhibit A, that is provided by LICENSOR to LICENSEE hereunder, including bug fixes and updates thereto provided by LICENSOR to LICENSEE in connection with this Agreement. 1.2 The term "Intellectual Property Rights" means patent rights, copyright rights, trade secret rights, and any other intellectual property rights. 1.3 The term "Executable Code" means the portion of the Licensed Software, which is licensed, to Licensee in machine executable binary form, as specified in Exhibit A. 1.4 The term "Source Code" means the portion of the Licensed Software, which is licensed, to Licensee in human-readable form, as specified in Exhibit A. 1.5 Documentation means the documentation regarding the Licensed Software provided by LICENSOR to LICENSEE hereunder. 1.6 The term "User" is a natural person using the Product. 1.7 The term "Site" is a specific address belonging to a single business unit operating at that address. 2. GRANT OF LICENSE. 2.1 Executable Code User License. Subject to the terms and conditions of this Agreement, and upon payment by LICENSEE to LICENSOR of the one-time User license fee set forth in Addendum A, LICENSOR grants LICENSEE a perpetual (subject to termination rights in Section 6), non-exclusive, non-transferable license to use the Executable Code of the Software Product for internal use only, concerning the purpose of generating source code from SNMP MIB modules. LICENSEE may use the Binary Code on not more than one computer system per licensed user at a time. LICENSEE agrees to comply with all reasonable monitoring requirements imposed by LICENSOR to ensure compliance with such limit on the maximum number of concurrent users. 2.2 Executable Code Site License. Subject to the terms and conditions of this Agreement, and upon payment by LICENSEE to LICENSOR of the one-time license Site license fee set forth in Addendum A, LICENSOR grants LICENSEE a perpetual (subject to termination rights in Section 6), non-exclusive, non-transferable license to use the Executable Code of the Software Product for internal use only, concerning the purpose of generating source code from SNMP MIB modules. Any employees or telecommuters directly reporting to a manager employed by LICENSSEE at the licensed Site may use the Binary Code on any computer system. LICENSEE agrees to comply with all reasonable monitoring requirements imposed by LICENSOR to ensure compliance with such limit on the Site bound maximum number of users. 2.3 Source Code Site License. Subject to the terms and conditions of this Agreement, and upon payment by LICENSEE to LICENSOR of the one-time license fee for any license type set forth in Addendum A, LICENSOR grants LICENSEE a perpetual (subject to termination rights in Section 6), non-exclusive, non- transferable license to use, modify, or have modified by a third party contractor (modifications in accordance to 2.6) subject to a confidentiality agreement no less restrictive than this Agreement, the Source Code for internal use only, for the sole purpose of developing SNMP agents or managers at the Site (hereafter "Licensed Site") specified by LICENSEE during license purchase. Additionally, Customer’s contractors and employees reporting directly and only to a manager at the Licensed Site, such as telecommuters, may use the Software Product at remote locations. Off-site employees re-porting in any way to a manager at their location are not covered under this Site License. 2.4 Generated Source Code. Upon payment by LICENSEE to LICENSOR of the one-time license fee for any license type set forth in Addendum A, LICENSEE has all rights on the Source Code generated by usage of the licensed Software Product. 2.5 No Sublicense Right. LICENSEE has no right to transfer, sublicense or otherwise distribute the Licensed Software to any third party, except if the third party takes over the business of LICENSEE. 2.6 Other Restrictions in License Grants. LICENSEE may not copy the Licensed Software, except as necessary to use the Licensed Software in accordance with the license granted under Section 2.1 and 2.2, and except for a reasonable number of backup copies. LICENSEE may not modify, reverse engineer, and decompile the Executable Code. The license does not cover the use of the Product in a build service, except if all users that may access and use that service are granted a license to use the Product as defined by Section 2.2 and 2.3 respectively. 2.7 No Trademark License. LICENSEE has no right or license to use any trademark of LICENSOR during or after the term of this Agreement. 2.8 Proprietary Notices. The Licensed Software is copyrighted. All proprietary notices incorporated in, marked on, or affixed to the Licensed Software by LICENSOR shall be duplicated by LICENSEE on all copies, in whole or in part, in any form of the Licensed Software and not be altered, removed, or obliterated on such copies. 2.9 Reservation. LICENSOR reserve all rights and licenses to the Licensed Software not expressly granted to LICENSEE under this Agreement. 2.10 Delivery. Upon execution of this Agreement, and payment of the amounts due and owing under this Agreement, LICENSOR will provide LICENSEE with one (1) copy of the Software Product by downloading from LICENSOR's Web site. 3. PRODUCT WARRANTY. 3.1. LICENSOR warrants to LICENSEE that, at the date of delivery of the Software Product to LICENSEE and for a period ending 90 days following the date of delivery of the Software Product to LICENSEE the Software Product shall perform substantially in accordance with the published specifications and Documentation. If notified in writing by LICENSEE, LICENSOR may, at its option, correct significant program errors in the Software Product within a reasonable time period. THE FOREGOING PRODUCT WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE. 3.2. In no event shall LICENSOR be liable to LICENSEE, in excess of the price paid to LICENSOR by LICENSEE for the Software Product hereunder, for any breach of warranty or any claim, loss or damage arising from or relating to the installation, use or performance of the Software Product (including, without limitation, any indirect, special, incidental or consequential damages). 3.3. LICENSOR reserves the right at any time to make changes to the Software Product. 3.4. IN NO EVENT SHALL LICENSOR BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, WARRANTY, PRODUCT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS OR SAVINGS ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF TERMS OF THIS AGREEMENT OR THE USE, INABILITY TO USE OR RESULTS OF USE OF THE SOFTWARE PRODUCT EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 3.5 In no event will LICENSOR be liable for any third-party products used with, or installed in, the Software Product. LICENSOR does not warrant the compatibility of the Software Product with any third-party products, whether hardware or software. 3.6 The above sections do not apply for liability for damages caused by gross negligence or wilful default. 3.7 General Provision. This warranty shall not apply in any case of amendment or alterations of the Software Product made by LICENSEE. 4. INTELLECTUAL AND PROPERTY INDEMNIFICATION. 4.1. LICENSOR agrees to indemnify and hold LICENSEE harmless from any final award of costs and damages against LICENSEE for any action based on infringement of any German intellectual property rights as a result of the use of the Licensed Software: (i) under the terms and conditions specified herein; (ii) under normal use; and (iii) not in combination with other items; provided that LICENSOR is promptly notified in writing of any such suit or claim against LICENSEE and further provided that LICENSEE permits LICENSOR to defend, compromise or settle the same and gives LICENSOR all available information, reasonable assistance and authority to enable LICENSOR to do so. LICENSOR'S LIABILITY TO LICENSEE PURSUANT TO THIS ARTICLE IS LIMITED TO THE TOTAL FEES PAID BY LICENSEE TO LICENSOR IN THE CALENDAR YEAR IN WHICH ANY FINAL AWARD OF COSTS AND DAMAGES IS DUE AND OWING. 5. TRADE SECRETS AND PROPRIETARY INFORMATION. 5.1. LICENSEE acknowledges that LICENSOR is the owner of the Software Product, that the Software Product is confidential in nature and not in the public domain, that LICENSOR claims all intellectual and industrial property rights granted by law therein and that, except as set forth herein, LICENSOR does not hereby grant any rights or ownership of the Software Product to LICENSEE or any third party. Except as set forth herein, LICENSEE agrees not to copy or otherwise reproduce the Software Product, in whole or in part, without LICENSOR's prior written consent. LICENSEE further agrees to take all reasonable steps to ensure that no unauthorized persons shall have access to the Software Product and that all authorized persons having access to the Software Product shall refrain from any such disclosure, duplication or reproduction except to the extent reasonably required in the performance of LICENSEE'S rights under this Agreement. 5.2. LICENSEE agrees to accord the Software Product and the Documentation and all other confidential information relating to this Agreement the same degree and methods of protection as LICENSEE undertakes with respect to its confidential information, trade secrets and other proprietary data. 5.3. LICENSEE agrees not to challenge, directly or indirectly, the right, title and interest of LICENSOR in and to the Software Product, nor the validity or enforceability of LICENSOR's rights under applicable law. LICENSEE agrees not to directly or indirectly, register, apply for registration or attempt to acquire any legal protection for the Software Product or any proprietary rights therein or to take any other action which may adversely affect LICENSOR's right, title or interest in or to the Software Product in any jurisdiction. 5.4. LICENSEE acknowledges that, in the event of a material breach by LICENSEE of its obligations under this Article 5, LICENSOR may immediately terminate this Agreement, without liability to LICENSEE and may bring an appropriate legal action to enjoin any such breach hereof, and shall be entitled to recover from LICENSEE reasonable legal fees and costs in addition to other appropriate relief. 5.5. LICENSEE agrees to notify LICENSOR immediately and in writing of all circumstances surrounding the unauthorized possession or use of the Software Product and Documentation by any person or entity. LICENSEE agrees to cooperate fully with LICENSOR in any litigation relating to or arising from such unauthorized possession or use. 6. TERMINATION. 6.1. LICENSOR may terminate this Agreement at any time after the occurrence of any of the following events if LICENSOR provides 30 days notice of its intention to terminate as a result of the occurrence and LICENSEE fails to cure such occurrence within such 30 days: (a) LICENSEE is declared or acknowledges that it is insolvent or otherwise unable to pay its debts as they become due or upon the filing of any proceeding (whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors of LICENSEE; (b) LICENSEE assigns or transfers this Agreement or any of its rights to obligations hereunder, without LICENSOR's prior written consent; or (c) LICENSEE violates any material provision of this Agreement, including without limitation, the payment obligations set forth in Addendum A. 6.2. LICENSEE may terminate this Agreement at any time after the occurrence of any of the following events if LICENSEE provides 30 days notice of its intention to terminate as a result of the occurrence and LICENSOR fails to cure such occurrence within such 30 days: (a) LICENSOR is declared or acknowledges that it is insolvent or otherwise unable to pay its debts as they become due or upon the filing of any proceeding (whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors or LICENSOR; or (b) LICENSOR violates any material provision of this Agreement. 6.3. Upon the termination of this Agreement for any reason, LICENSEE will discontinue all use of the Software Product and, within ten (10) days after termination, will destroy or delete all copies of the Software Product then in its possession, including but not limited to, any back-up or archival copies of the Software Product and Documentation. At LICENSOR's request, LICENSEE will verify in writing to LICENSOR that such actions have been taken. 6.4. No termination of this Agreement for any reason whatsoever shall in any way affect the continuing obligations of the parties under Articles 5 hereof. 7. APPLICABLE LAW This LICENSE shall be deemed to have been made in, and shall be construed pursuant to, the laws of Germany, without reference to conflicts of laws principles. All controversies and disputes arising out of or relating to this Agreement shall be submitted to the exclusive jurisdiction of Esslingen am Neckar, Germany, as long as LICENSEE is deemed to be a merchant (as defined by Handelsgesetzbuch, §1-7). The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. 8. GENERAL PROVISIONS. 8.1. This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties. 8.2. This Agreement (including the Exhibit and Addendum attached to the Agreement) sets forth the entire agreement and understandings between the parties hereto with respect to the subject matter hereof. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between LICENSOR and LICENSEE with respect to the contents hereof. 8.3. Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each party. 8.4. The failure of either party to exercise any right granted herein, or to require the performance by the other party hereto of any provision if this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement. 8.5. Except in the case of merger, acquisition or the sale of substantial assets or equity of Licensee or assignment to any direct or indirect subsidiary or affiliate of LICENSEE, LICENSEE shall not sell, assign or transfer any of its rights, duties or obligations hereunder without the prior written consent of LICENSOR. LICENSOR reserves the right to assign or transfer this Agreement or any of its rights, duties and obligations hereunder, to any direct or indirect subsidiary or affiliate of LICENSOR. 8.6. All notices required by this Agreement must be sent by certified mail in order to be deemed effective when sent to the following: FOR LICENSOR: Frank Fock Maximilian-Kolbe-Str. 10 73257 Koengen, Germany FOR LICENSEE: The name and address on LICENSEE's purchase order. EXHIBIT A Licensed Software AgenPro 3 (including AgenPro 3 Maven Plugin) a. Binary Code - (Java SE 6 or later executable) b. Source Code - (Code generation templates and project files) ADDENDUM A For evaluation purposes, a free temporary license is granted, provided that the LICENSEE accepts this license agreement. After termination of the temporary license, LICENSEE must completely delete all copies of the Software Product or purchase a license. The output generated during the evaluation of the Product must not be used commercially. In order to obtain a license to use AgenPro, LICENSEE has to purchase an User or Site license from LICENSOR. The actual pricing list and other related information can be found at http://www.agentpp.com